Leiden Law Blog

Dutch Committee of State to recalibrate parenthood: a broad and challenging task!

Posted on by Machteld Vonk in Private Law
Dutch Committee of State to recalibrate parenthood: a broad and challenging task!

On Friday 21 February 2014 the Dutch government announced that it will install a committee to re-evaluate Dutch laws relating to parenthood. During the parliamentary debates on the Bill that regulates the legal motherhood of the female partner of the birth mother in a lesbian relationship, the discussion broadened to other new family forms that are not regulated under current Dutch parent-child law, such as families established through surrogacy, families headed by two fathers and stepfamilies. In the context of lesbian parenthood this discussion focussed on the legal position of the known sperm donor and the impossibility for children under Dutch law to have more than two legal parents or more than two persons with parental responsibilities. As a result of debates in the House of representative on this Bill a study was commissioned into the possibilities and obstacles that would arise if more than two persons could acquire parental responsibilities, as is possible in England for instance.

Once the Bill was accepted by the House of representatives and submitted to the Senate, the idea for the formation of a committee of state was brought forward by one of the members of the Senate as it became increasingly apparent that this Bill would only regulate the legal position of children in lesbian families within the two-parent model. The Bill did not address the legal regulation of the involvement of more than two parents in a child’s life. It was subsequently argued by some that the Bill contained no or insufficient legal safeguards against the complete exclusion of the child’s biological father from its life. Others argued that it did not legally recognise the active involvement of both the mothers and the known sperm donor in the child’s life. The study on parental responsibilities mentioned earlier had no influence on the passage of this Bill through parliament, as it was published three months after the Bill on lesbian parenthood was accepted by the Senate on 19 November 2014. It will of course be very useful to the committee.

Another issue the new law does not address concerns the legal problems faced by other new family forms, such as families headed by two fathers or families engendered through surrogacy. At present, the Netherlands does not look very favourably on surrogacy, while on the other hand acknowledging its existence both in the context of domestic and cross-border surrogacy. In 2010 a comparative study into Surrogacy and illegal adoption was commissioned by the Minister of Justice which included country studies of a number states with a more or a less permissive attitude towards surrogacy such as California and Germany. This study, which was published in 2011, has not yet led to changes in the law regarding legal parenthood or parental responsibilities, although it has led to some changes in the recognition of legal parenthood established abroad after cross-border surrogacy.

This multi-disciplinary committee will have to look into all these issues. Its task will be to reflect on the existing grounds for assigning legal parenthood. Furthermore, the committee will be asked in particular to reflect on questions concerning the possibilities of the introduction of a statutory regulation on parental responsibilities and legal parenthood for more than two persons and on surrogacy. A broad and challenging task which may lead to a new view on parenthood (and possibly a new law on legal parenthood and parental responsibilities). Exciting times are ahead for this committee that is expected to consist of six members from various fields including, law, ethics, child development and reproductive medicine. The existing studies on parental responsibilities and surrogacy will hopefully help them on their way. Their report is expected on 1 March 2016. 

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